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Validity aiul Ncc(!ssil) of Fiimhsmp'it;?! ('oiidilioiis on Slates. 



SPEECH 



OF 




HON. CHARLES SUMNER, 

OF MASSACHUSETTS, 

IN THE SENATE OF THE UNITED STATES, JUNE 10, 1868. 



The Senate having under consideration the bill 
(H. R. No. 1058) to admit the States of North Caro- 
lina, South Carolina, Louisiana, Georgia, and Ala- 
bama to representation in Congress — 

Mr. SUMNER said : 

Mr. President: What I have to say to-day 
•win be confined to a single topic. I shall 
speak of the validity and necessity of funda- 
mental conditions on the admission of States 
into the body of the Nation; passing in review 
olijections founded on the asserted Equality 
of States and also founded on a misinterpret- 
ation of the power to determine the "quali- 
fications" of electors, and that other power to 
make "regulations" for the election of cer- 
tain officers. Here 1 shall encounter the fa- 
miliar pretensions of another time, no longer 
put forth by defiant slave-masters, but retailed 
by conscientious Senators, who think they are 
supporting the Constitution, when they are 
only echoing the voice of slavery. 

Fundamental conditions on the .admission of 
States are olderthan our Constitution ; for they 
appear in the Ordinance for the vast territory 
of the Northwest, adopted anterior to the 
Constitution itself. In that Ordinance there 
are various conditions, of perpetual obligation, 
as articles of compact. Among these is the 
famous prohibition of slavery. In the early 
days of our Nation, nobody thought of ques- 
tioning the validity of these conditions. Scat- 
tered efforts were made to carry slavery into 
some portions of this region, and, unquestion- 
ably, there were sporadic cases, as in Massa- 
chusetts itself; but the Ordinance stood firm 
and unimpeached. 

One assurance of its authority will be found 
in the historic fact that in 1820, on the admis- 
sion of Missouri as a State of the Union, there 
was a further provision that in all territory 



of the United States north of 3G° 3(y north 
latitude, "Slavery and involuntary servitude, 
otherwise than in the punishment of crimes, 
whereof the parties shall have been duly con- 
victed, shall be and hereby is forever prohib- 
ited.''^ This was the famous Missouri com- 
promise. Missouri was admitted as a State 
without any restriction of slavery, and all the 
outlying territory west and north was subjected 
to this condition fonxver. It will be observed 
that the condition was in no respect temporary ; 
but that it was "forever," thus outlasting any 
territorial Government and constituting a fund- 
amental law, irrepealable through all time. 
Surely this condition, perpetual in form, would 
not have been introduced had it been sup- 
posed to be inoperative — had it been regarded 
as a sham and not a reality. This statute, 
therefore, testifies to the judgment of Congress 
at that time. 

It was only at a later day, and at the demand of 
slavery, that the validity of the great Ordinance 
of Freedom was called in question. Mr. Web- 
ster, in his memorable debate with Mr. Hayno 
in 1830, vindicated this measure in language 
worthy of the cause and of himself, giving to 
it a palm among the laws by which civilization 
has been advanced, and asserting its enduring 
character : 

"AVo are accustomed, sir, to praise the lawgivers 
of antiquity ; we help toperpetuate the fame of Solon 
andLycurxus; but I doubt whether one single law 
of any lawgiver, ancient or modern, has produced 
effects of more distinct, mnrked, and lasting charac- 
ter than the ordinance of 1787. It fixed forever the 
character of the population inthe vast regions north- 
west of tlie Ohio, by excluding from them involun- 
tary servitude. It impressed on the soil itself, while 
it was yol a wilderness, an incapacity to sustain any 
other than freemen. It laid the interdict against per- 
gonal servitude, in original compart, not only deeper 
than all local law, but deeper alno than all local cyniiti- 
tv.liovn."— WrhRter's Wovh;. vol. :>,, p. 2l> t. 



/ ^' 



.^c|S8 



Words of greater beauty and power cannot 
be found anywhere in the writings or speeches 
of our American orator. It would be difficult to 
declare the perpetual character of this original 
interdict more completely. The language is as 
picturesque as truthful. Deeper than all local 
law, deeper than all local constitutions, is this 
fundamental law ; and such is its essential 
quality, that the soil which it protects cannot 
sustain any other than freemen. Of such a law 
the orator naturally proceeded to say : 

"We SCO its consequences at this moment, and we 
shall never cease to see them, pcrhaps.while tha-Ohio 
shall flow. It xoas a great and salutary measure of 
prevention.'' — Ibid. * 

In these last words the value of such a law 
is declared. It is for prevention, which is an 
essential object of all law. In this case it is 
the more important, as the evil to be prevented 
is the most comprehensive of all. 

Therefore, on the authority of Mr. Webster, 
in harmony with reason also, do I say, that 
this original condition waS not only perpetual 
in character, but beneficent also. It was benefi- 
cence in perpetuity. 

Mr. Chase, in his admirable argument Vje- 
fore the Supreme Court of the United States, 
in the Van Zandt case, is hardly behind Mr. 
Webster in homage to this Ordinance or in a 
sense of its binding character. In his opinion 
it is a compact of perpetual obligation : 

"I know not that history records a sublimer act. 
The United Americnn States, haviner just ))rought 
their perilous strussle for freedom and independ- 
ence to a successful issue, proceeded to declare the 
terms and conditions on which thcirvaeant territory 
raisht be settled .and organized into States; and 
these terms were : not tribute, not render of service, 
not subordination of any kind; Jnit the perpctunl 
mainlenance of the ijeixiiinc principles of Americnn 
libertji, declared to be incompatible inith slavery; and 
that thcpc principles might be in viol ably maintained, 
they were made the articles of a solemn covenant be- 
tween the original States, then the proprietors of the 
territory and responsible for its future destiny, and 
the people and the States who were to occupy it. 
Every settler within the territory, by the very net of 
settlement, became a party to this compact, bnuiid by 
its perpetual obligalions, and entitled to the full bene- 
fits of its excellent provisions for himself an<l his' 
posterity. No subsequent act of the original States 
could affect it, without his consent. No act of his, 
nor of thepeople of the territory, nor of the States estab- 
lished within it, could affect it, without the consent of 
the original States." 

According to these words, which I am sure 
would not be disowned by the present Chief 
Justice of the United States, the Ordinance 
is a sublime act, having for its object nothing 
less than the perpetual maintenance of the gen- 
uine principles of American liberty. In i'orra 
it is a compact, unalterable except by the con- 
sent of the parties, and, therefore, /orewer. 

If anything in our history is settled by 
original authority, supported by tradition and 
time, it is the binding character of the 
Ordinance for the government of the North- 
west Territory. Nobody presumed to call it 



in question, until at last Slavery flung down its 
challenge to everything that was settled for 
Freedom. The great Ordinance, with its pro- 
hibition of slavery, was not left unassailed. 

All this makes a strange eventful passage of 
history. The enlightened civilization of the age 
was beginning to be felt against slavery, vi^hen its 
representatives turned madly round to confront 
the angel of light. The madness showed itself 
by degrees. Point by point, it made itself 
manifest in Congress. The slave-masters for- 
got morals, history, and the Constitution. Their 
manifold pretensions resolved themselves into 
three, in which the others were absorbed ; 
first, that slavery, instead of an evil to be 
removed, was a blessing to be preserved ; sec- 
ondly, that the right of petition could not be 
exercised against slavery ; thirdly, that in all 
that concerns slavery State Rights were every- 
thing, while National Rights were nothing. 
These three pretensions entered into Congress, 
like so many devils, and possessed it;. The 
first broke forth in eulogies of slavery and even 
in blandishments lor the slave trade. The 
se.cond broke forth in the "Atherton gag," 
under which the honest, earnest petitions, 
from the national heart, against slavery, even 
in the District of Columbia, were tabled with- 
out reference, and the great right of petition, 
promised by the Constitution, became a dead 
letter. The third, beginning with the denial 
of the power of the Nation to affix upon new 
States the perpetual condition of Human Rights, 
broke forth in the denial of the power of the 
Nation over slavery in the Territories or any- 
where else, even within the national jurisdic- 
tion. These three pretensions all had a com- 
mon origin, and one vv^as as offensive and 
unreasonable as the other. The praise of 
slavery and the repudiation of the right of 
petition Ijy the enraged slave-masters was not 
worse than the pretension of State Rights 
against the power of the Nation to prohibit 
slavery in the national jurisdiction, or to aflix 
righteous conditions upon new States. 

The first two pretensions have disappeared. 
These two devils have been cast out. Nobody 
dares to praise slavery ; nobody dares to deny 
the right of petition. The third pretension has 
disappeared, only so faF as it denied the power 
of the Nation over slavery in the Territories; 
and we are still doomed to hear, in the name 
of State Rights, the old cry against conditions 
upon new States. This devil is not yet en- 
tirely cast out. Pardon me if I insist upon 
putting the national rights over the Territories 
and the national rights over new States before 
their admission in the same category. These 
rights not only go together ; but they are one 
and the same. They are not merely compan- 
ion and cognate ; but they are identical. The 
one is necessarily involved in the other. Pro- 
hibition in the Territories is prolonged in con- 



' ditions upon new States. The Ordinance of 

«)• 1787, which is the great example, asserts the 

J perpetuity of all its prohibitions ; and this is 

^ the rule alike of law and statesmanship. Vain 

^ were its prohibitions, if they fell dead in 

^presence of State Rights. The pretension 

' is too irrational. The Missouri act takes up 

i/the rule asserted in the Ordinance, and declares 

^that, in certain territories, slavery shall be 

"prohibited forever. A territorial existence, 

terminating in State Rights is a short-lived 

forever. Only by recognizing the power of 

the Nation over the States formed out of the 

Territory can this forever have a meaning 

above the prattle of childhood or the vaunt of 

Bombastes. 

The whole pretension against the proposed 
condition is in the name of State Rights; but 
it cannot be doubted that it may be traced 
directly to slavery. Shall the pretension be 
allowed to prevail, now that slavery has disap- 
peared? The principal has fallen; why pre- 
serve the incident? The wrong guarded by 
this pretension has yielded ; why should not 
the pretension yield also? Asserting as I now 
do the validity and necessity of the proposed 
condition, I would not seem indifferent to the 
rights of the States in those proper spheres 
appointed for them. Unquestionably States 
have rights under the Constitution, which we 
are bound to respect; nay more, which are a 
source of strength and advantage. It is through 
the States that the people everywhere govern 
themselves, and our Nation is saved from a 
central domination. Here is the appointed 
function of the States. They supply the 
machinery of local self-government for the 
convenience of life, while they ward off the 
attempts of an absorbing imperialism. But 
there can he no State liights against Human 
liights. Because a State, constituting part of 
a Nation dedicated to Human Rights, may gov- 
ern itself and supply the machinery of local 
self-government, it does notfoltow that such a 
State may deny Human Rights ivithin its bor- 
ders. State Rights, when properly under- 
stood, are entirely consistent with the main- 
tenance of Human Rights by the Nation. 
The State is not humbled when it receives the 
mandate of the Nation to do no wrong; nor 
can the Nation eiT when it asserts everywhere 
within its borders the imperialism of Human 
Rights. Against this righteous supremacy all 
pretensions of States must disappear as dark- 
ness before the King of Day. 

The song of State Rights has for its constant 
refrain the asserted Equality of the States. 
Is it not strange that words so constantly em- 
jiloyed, as a cover for pretensions against 
Human Rights, cannot be found in the Consti- 
tution ? It is true, that by the laws of nations, 
all sovereign States, great or small, are equal ; 
but this principle has been extended without 



authority to States created by the Nation and 
made a part of itself. There is but one active 
provision in the Constitution which treats the 
States as equal, and this provision shows how 
this very Equality may be waived. Every 
State, large or small, has two Senators, and 
the Constitution places this Equality of States 
under its safeguard by providing that "no State 
without Us consent shall be deprived of its 
equal suffrage in \.hQ Senate." But this very 
text contains what lawyers might call a "ueg- 
gative pregnant," being a negation of the right 
to change this rule, with an affirmation that it 
may be changed. The State with its consent 
may be deprived of its equal suffrage in the 
Senate. And this is the whole testimony of the 
Constitution to that Equality of States, which is 
now asserted in derogation of all compacts or 
conditions. It is startling to find how con- 
stantly the obvious conclusions from the text* 
of the Constitution have been overlooked. 
Even in the contemplation of the Constitution 
itself, a State may waive its equal suffrage in 
the Senate, so as to be represented by a single 
Senator only. Of course, all this must depend 
on its own consent, in concurrence with the 
Nation. Nothing is said of the manner in 
which this consent may be given or accepted 
by the Nation. But if this important limita- 
tion can in any way be made the subject of 
agreement or compact, pray, sir, where will 
you stop? What other power or prerogative 
of the State may not be limited also, especially 
where there is nothing in the Constitution 
against any such limitation? All this I adduce, 
simply by way of illustration. There is no 
question now of any limitation in the just 
sense of this term. A condition in favor of 
Human Rights cannot be a limitation on a 
State or on a citizen. 

If we look further and see how the senatorial 
equality of States obtained recognition in the 
Constitution, we shall find now occasion to 
admire that facility which has accorded to this 
concession so powerful an influence ; and here 
the record is explicit. The National Conven- 
tion had hardly assembled, when the small 
States came forward with their pretensions. 
Not content with suffrage in the Senate, they 
insisted upon equal suffrage in the House of 
Representatives. They had in their favor tlio 
rule of the Continental Congress and also of the 
Confederation, under which each State enjoyed 
one vote. Assuming to be independent sove- 
reignties, they had also in tlieir liivor the rule 
of International Law. Against tiiesc preten- 
sions the large States pleaded the simple rule 
of justice, and here the best minds concurred. 
On this head the debates of the Convention 
are interesting. At an early day, we find Mr. 
Madison moving that "the equality of suffrage 
established by the Confederation ought not to 
prevail in the National Legislature." This 



proposition, so consistent with reason, was 
.seconded by Goiiverneur Morris, and accord- 
ing to the report "being generally relished," 
was about being adopted, when Delaware, by 
one of" her voices on the floor, protested, say- 
ing, that, in case it were adopted, "it might 
become the duty of her delegates to retire from 
the Convention." Such was the earliest cry 
of secession. GouverneurMorris, while observ- 
ing that the valuable assistance of these dele- 
gates could not be lost without real concern, 
gave his testimony, that "the change pro- 
posed was so fundamental an article in a iVcs- 
tional Government, that it could not be dis- 
pensed with." {Eliot. Debates, vol. 5, p. 
135.) Mr, Madison followed by saying very 
justly that "whatever reason might have 
existed for the equality of suffrage when the 
Union was Federal aviong sovereign States, 
'it must cease, when a National government 
should be put in its place." Franklin, in 
similar spirit, reminded the Convention that 
the equal suffrage of the States ' ' was submitted 
to originally under a conviction of its im- 
propriety, inequality, and injustice." {Ibid., 
p, 181.) This Is strong language from the 
wise old man ; but very true. Eibridge Gerry, 
after depicting the States as intoxicated with 
the idea of their sovereignty, said that "the 
injustice of allowing each an equal vote was 
long insisted on ; that he voted for it ; but that 
it was against his judgment and under the 
pressure of publrc danger and the obstinancy 
of the lesser States." {Ibid., p. 259.) Against 
these overwhelming words of Madison, Morris, 
Franklin, and Gerry, the delegates from Dela- 
ware pleaded nothing more than that without an 
equal suffrage, " Delaware would have about 
one ninetieth for its share in the general coun- 
cils, while Pennsylvania and Virginia would pos- 
Gess one third of the whole ;" and New Jersey, 
by her delegates, pleaded also that " it would 
not be safe for Delaware to allow Virginia six- 
teen times as many votes as hei'self." {Ibid. 
p. 211.) On" the part of the small States, the 
effort was for power disproportioucd to size. 
On the part of the large States there was a 
protest against the injustice and inequality of 
these pretensions, especially in a Government 
national in its character. The question was 
settled by thegreat compromise of the Constitu- 
tution, according to which representation in the 
House of Representatives was proportioned to 
population, while each State was entitled to 
an equal suffrage in the Senate. To this extent 
the small States prevailed, and the Senate 
ever since has testilaed to the equality of States, 
or, rather, according to the language of the 
Federalist on this very point, it has been the 
" palladium to the residuary sovereignty of 
the States." (Federalist, No. 43.) Thus, by 
the pertinacity of the small States, was this 
concession extorted from the Convention, in 



defiance of every argument of justice and 
equity, and contrary to the judgment of the best 
minds ; and now it is exalted into a universal 
rule of constitutional law, before which justice 
and equity must hide their faces. 

This protracted and recurring conflict in the 
Convention is compendiously set forth by our 
great authority. Judge Story, when he says, 
"it constituted one of the great struggles 
between the large and the small States, which 
was constantly renewed in the Convention and 
impeded it in every step of its progress in the 
formation of the Constitution. The struggle 
applied to the organization of each branch of 
the Legislature. The small States insisted 
upon an equality of vote and representation in 
each branch ; and the large States upon a vote 
in proportion to their relative importance and 
population. The small States at length yielded 
the point, as to an equality of representation 
in the House ; but they in.sisted upon an equal- 
ity in the Senate. To this the large States 
were unwilling to assent ; and for a time the 
States were on this point equally divided." 
(1 Story, Commentaries, Vol. 1 | 694.) This 
summary is in substantial harmony with my 
own abstract of the debates. I present it 
because I would not seem in any way to over- 
state the case. And here let me add most 
explicitly, that I lend no voice to any com- 
plaint against the small States ; nor do I sug- 
gest any change in the original balances of our 
system. I insist only that the victory achieved 
in the Constitution by the small States shall 
not be made the apology for a pretension incon- 
sistent with Human Rights. And now for the 
sake of a great cause the truth must be told. 

It must not be disguised that this pretension 
has another origin outside the Constitution, 
This is in the Ordinance of 1787, where it is 
positively provided that any State, formed out 
oftho Northwest Territory, "shall be admitted, 
by its delegates, into the Congress of the Uni- 
ted States, on an equal footing with theoriginal 
States in all respects.'^ {Ilicfcei/'s Constitution, 
p. 425.) Next after the equal suffrage in the 
Senate stands this provisson with its talismanic 
phrase, equal footing. New States are to be 
admitted on an equal footing vi'ilh. the original 
States in all respects whatever. This language 
is strong ; but nobody can doubt that it must 
be read in the light of the Ordinance where it 
appears. Head in tliis light its meaning can- 
not he questioned. By the Ordinance there 
arc no loss than six different articles of coin- 
pact " forever unalterable unless by common 
consent," constituting so many perj)etual safe- 
guards ; the first perpetuating religious liberty ; 
the second perpetuating trial by jury, habeas 
corpus, and judicial proceedings, according to 
the course of the common law ; the third per- 
petuating schools and the means of education ; 
the fourth perpetuating the title oftho United 



States in the soil without taxation, the freedom 
of the rivers as highways, and the liability of 
tlie people for a just proportion of the national 
debt ; the fifth perpetuating the right of the 
States to be admitted into the Union on an 
equal footing with the other States ; and then, 
next in order, the sixth perpetuating freedom — 
being that immortal condition, which is the 
golden bough of this mighty oak — " that there 
sliall be neither slavery nor involuntary servi- 
tude in the said territory." Now it is clear 
that subjection to these perpetual conditions 
was not considered in any respect inconsistent 
v/ith that "equal footing" which was stipu- 
lated. Therefore, even assuming that States 
when admitted shall be on an "equal footing" 
with others, there can be no hindrance to any 
conditions by Congress kindred to those which 
were the glory of the Ordinance. 

To all who, borrowing a catch-word from 
slavery, assert the Equality of States in dero- 
gation of fundamental conditions, I oppose the 
plain text of the Constitution, which contains 
no such rule, except in a single instance, and 
theretheequality may be waived ; and I oppose 
also the Ordinance of 1787, which, while requir- 
ing that new States shall be admitted on an 
•'equal footing" with other States, teaches by 
its own great example, that this requirement 
is not inconsistent with conditions of all kinds 
and especially in favor of Human Rights. The 
Equality of States on the lips of slave-masters 
was natural, for it was a plausible defense 
against the approaches of Freedom ; but this 
unauthorized phrase, which has deceived so 
many, must be rejected now, so far at least as 
it is employed against the Equal Rights of all. 
As one of the old garments of slavery, it must 
be handed to the flames. 

From this review, it is easy to see that we 
approach the present question without any 
impediment or constraint in the Constitution. 
Not a provision, not a clause, not a sentence, 
not a jihrase in (he Constitution can be made 
an apology even for the present objection. 
Absolutely nothing; and here! challenge reply. 
Without any support in the Constitution its 
partisans borrow one of the worst pretensions 
of slavery, and utter it now as it was uttered by 
slave-masters. Once more we liear the voice of 
.slavery, crying out in familiar tones, that condi- 
tions cannot be imposed on new States. Alas ! 
that slavery, which we thought had been slain, 
is not entirely dead. Again it stalks into this 
Chamber, like the majesty of buried Denmark — 
' • In the same figure like t he king that' s dead' ' — 
and then, like this same ghost, it cries out 
" swear," and then again " swear ;" und Sena- 
tors pledged to freedom take up the old pre- 
tension and swear it anew. For myself, I 
insist, not only, that slavery shall be buried out 
of sight, but that all ils wrelched pretensions 
hostile to Human Rights shall be buried with it. 



The conditions upon new States are of two 
classes ; first, those that may be required ; 
secondly, those that imist be required. 

The first comprehends those conditions, 
which the Nation may consider it advisable to 
require, before admitting a new member into 
the partnership of government. The Consti- 
tution, in positive words, leaves to the Nation 
a discretion with regard to the admission of 
new States. The words are: " New States vwa^/ 
be admitted into the Union," thus plainly rec- 
ognizing a latitude under which any conditions 
not inconsistent with the Constitution may be 
required, as by a firm on the admission of a 
new partner. All this is entirely reasonable ; 
but 1 do not stop to dwell on it, for the con- 
dition which I have at heart does not come 
under this head. » 

A fundamental condition in favor of Human 
Rights is of that essential character, that it 
must be required. Not to require it is to aban- 
don a plain duty ; so it seems to mo. 1 speak 
with all deference to others, but I cannot see 
it otherwise. 

The Constitution declares, that " the United 
States shall guarantee to every State in this 
Union a republican form of governmenf.''^ 
These are grand words, perhaps the grandest 
in the Constitution, hardly excepting the Pre- 
amble, which is so full of majestic meaning 
and such a fountain of national life. Kindred 
to the Preamble is this supreme obligation 
imposed on the United States to guaranty a 
republican government. There it is. You can- 
not avoid this duty. Called to its performance, 
you must supply a practical definition of a 
republican government. This again you cannot 
avoid. By your oaths, by all the responsibili- 
ties of your position, you must say what in 
your judgment is a republican government, 
and you must so decide as not to discredit our 
fathers and not to give an unworthy example 
to_ mankind. Happily the definition is already 
of record in our history. Our fathers gave it to 
us, as amid the thunders of Sinai, when they 
])ut forth their Declaration of Independence. 
There it stands in the very front of our Great 
Charter, embodied in two simple self-evident 
truths, first, that all men are equal in rights, 
and secondly, that all just government is founded 
only on the consent of the governed — -the two 
together making an axiomatic definition which 
proves itself. Its truth is like the sun ; blind 
is he who cannot see it. And this is the defini- 
tion bequeathed as a freehold by our fatliers. 
Though ofYen assailed, even by Senators, it is 
none the less true. So have 1 read of savages, 
who shot their arrows at the sun. Clearly, 
then, that is a republican government where all 
have ecjual rights and participate in the govern- 
ment. I knownotif anything need be added ; 
I am sure tli.at iKjthing c:in be subtracted. 

The Constitution itself sets the example of 



6 



imposing conditions upon the States. Posi- 
tively it says, no State shall enter into any 
treaty, alliance or confederation; no State shall 
grant letters of marque or reprisal ; no State 
shall coin money ; no State shall emit bills of 
credit. Again, it says, no State shall, without 
the consent of Congress, lay any duty of ton- 
nage, or keep troops or ships of war in time 
of peace. All these are conditions in the text 
of the Constitution, so plain and intelligible as 
to require no further elucidation. To repeat 
them on the admission of a State would be 
superfluous. It is different, however, with that 
highest condition of all, that the State shall be 
republican. This requires repetition and eluci- 
dation, so as to remove all doubt of its appli- 
cation, and to vitalize it by declaring what is 
me«,ut by a republican government. 

Here I might close this argument ; but there 
are two hostile pretensions which must be 
exposed; the first, founded on a false interpret- 
ation of "qualifications," being nothing less 
than the impossible assumption that because 
the States may determine the "qualifications" 
of electors, therefore they can make color a 
criterion of the electoral franchise ; and the 
second, founded on a false interpretation of the 
asserted power of the States "to regulate 
suffrage," being nothing less than the impossi- 
ble assumption that, under the power to regu- 
late suffrage, the rights of a whole race may be 
annihilated. These two pretensions are, of 
course, derived from slavery. They are hatched 
from the eggs that the cuckoo bird has left 
behind. Strange that Senators will hatch them. 

(1.) By the Constitution it is provided that 
"the electors in each State shall have the qual- 
ifications requisite for electors of the most 
numerous branch of the State Legislatures." 
On this clause Senators build the impossible 
pretension that a State cannot be interrupted 
in its disfranchisement of a race. Here is the 
argument. Because a State may determine the 
qualifications of electors, therefore it may de- 
prive a whole race of equal rights and of par- 
ticipation in the Government. Logically speak- 
ing, here are most narrow premises for the 
widest possible conclusion. On the mere state- 
ment, the absurdity Is so unspeakable as to 
recall the kindred pretension of slavery, that, 
because commerce Is lawful, therefore com- 
merce in human flesh Is lawful also. If the con- 
sequences were not so oflensive, this "argal " 
might be handed over to consort with that of 
the Shakspearean grave-digger. But the argu- 
ment is not merely preposterous, it is Insulting 
to the human understanding, and a blow at 
human nature itself. If I use strong language 
it is because such a proclamation of tyranny 
requires it. Admitting that the States may 
determine the "qualifications" of electors ; 
what then? Obviously It must be according to 
the lej'Itimate meaning of this word. And 



here, besides reason and humanity, two inex- 
haustible fountains, we have two other sources 
of authority ; first, the Constitution in which the 
word appears, and secondly, the dictionaries of 
the English language, out of both of which we 
must condemn the Intolerable pretension. 

The Constitution, where we find this word, 
follows the Declaration of Independence and 
refuses to recognize any distinction of color. 
Search and you will confess, that there Is no 
word of " color" in Its text ; nor is there any- 
thing there on which to found any disfranchise- 
ment of a race. The "qualifications" of dif- 
ferent officers, as President, Vice President, 
Senators and Representatives are named ; but 
"color" Is not among these. The Constitu- 
tion, like the Ten Commandments and the 
Beatitudes, embraces all alike within its man- 
dates and all alike within its promises. There 
are none who must not obey it ; there can be 
none who may not claim its advantages. By 
wh{j,t title do you exclude a race? The Con- 
stitution gives no such title ; you can only find 
it in yourselves. The fountain Is pure ; It Is 
only out of yourselves that the waters of bit- 
terness proceed. 

The dictionaries of our language are In har- 
mony with the Constitution. Look at " quali- 
fications" In Webster or Worcester, the two 
best authorities of our time, and you will find 
that the word means " fitness " — " ability " — 
"accomplishment" — " the state of being qual- 
ified;" but it does not mean "color!" It 
embraces age, residence, character, education 
and the payment of taxes — in short, all those 
conditions which when honestly administered 
are In the nature of regulation, not of disfran- 
chisement. The English dictionaries, most used 
by the framers of the Constitution, were Bai- 
ley and Johnson. According to Bailey, who 
was the earliest, this important word is thus 
defined : 

(1.) "That wliichfils any person or thing for any par- 
ticular purpose. 

(2.) "A particular faculty, or endowment, or accom- 
plishment." 

According to Johnson, who Is the highest 
authority, it is tiuis defined : 

(1.) "That lohich makes any person or thing fit." 
Example. — "It is in the power of the iirincc to 
make piety and virtue become the lashion, if he 
would make tliem necessary qualificatiuna for pre- 
f ormen t. ' ' — Swift. 

i'2.) "Accomplishment." 

Ex-ample. — "Good qualifications of mind enable a 
magistrate to perform his duty, and tend to create 
public esteem of him." — Atterhury. 

By these definitions this word means "fit- 
ness," or "accomplishment," and, according 
to the well-chosen examples from Swift and 
Atterbury, it me^us, qualities \We "piety" and 
"virtue," or like "faculties of mind." all of 
which are more or less within the reach of 
every human being, but It is impossible lo ex- 



tend this list so as to make " color" a quality. 
Absolutely impossible. Color is a physical con- 
dition, affixed by the God of nature to a large 
portion of the human race, and insurmountable 
in its character. Age, education, residence, 
property, all these are subject to change; but 
the Jithiopian cannot change his skin. On this 
last distinctive circumstance I take my stand. 
An insurmountable condition is not a qualifi- 
cation bat a disfranchisement. Admit that a 
State may determine the " qualilications" of 
electors, it cannot, under this authority, arbi- 
trarily exclude a whole race. 

Try this question by examples. Suppose 
Soutli Carolina, where the blacks are numerous, 
should undertake to exclude the whites from 
the polls, on account of "color;" would you 
hesitate to arrest this injustice? You would 
insist that such a government sanctioning such 
a denial of rights, under whatever pretension, 
could not be republican. Suppose another 
State should gravely declare, that all ivith 
black eyes should be excluded from the polls ; 
and still another should gravely declare that 
all loith black hair should be excluded from the 
polls, I am sure that you would find it difficult 
to restrain the mingled derision and indignation 
which such a pretension must excite. But this 
fable pictures your conduct. All this is now 
gravely done by States ; and Senators gravely 
insist that such exclusion is proper, in determ- 
ining the "qualifications" of electors. 

(2) Like unto the pretension founded on a 
misinterpretation of "qualifications" is that 
other founded on a misinterpretation of the 
asserted power of a State to make " regula- 
tions." Listen to this pretension. Assuming 
that a State may regulate the elections, witliout 
the intervention of Congress, it is insisted that 
it may disfranchise a race. Because a State 
may regulate the; elective francliise, therefore 
it may destroy this iVanchise. Surely it is one 
thing to regulate and quite another thing to 
destroy. The power to regulate cannot involve 
any such conclusion of tyranny. To every 
such wretclied result, howsoever urged, there 
is one sufficient reply, non sequitur. 

According to the Constitution, " the iimes, 
places and manner of holding elections for 
Senators and Representatives shall be pre- 
scribed—each Stateby the Legislature thereof ; 
but the Congress may, at any time, by law 
make or alter such regulations, except as to 
the places of choosing Senators. " ' llere is the 
text of this portentous power to blast a race. 
In these simple words no such power can be 
found, unless the seeker makes the Constitution 
a reflection of himself. The times, pkices and 
manner of holding elections are referred to 
the States ; nothing more ; and even these may 
be altered by CoHgress. Being matters of 
form and convenience only, in the nature of 
''police," they are justly included under the 



head of "regulations," like the sword and 
uniform of the Army. Do we not familiai'lj'- 
speak of a regulation sword and a regulation 
sash? Who will dare to say, that under this 
formal power of regulation a whole race maybe 
despoiled of equal rights and of all participa- 
tion in the Government ? This very pretension 
was anticipated by Mr. Madison, and con- 
demned in advance. Here are his decisive 
words in the Virginia Convention : 

"Some States might regulate the elections on the 
principle of equality, and others might rcjulato them 
otherwise." * * * * " Should the peoplo 
of any State, by any means, be deprived of the right 
of suftrage, it loasjudaed proper that it should be reme- 
died by the General Government, — Eliot's Debate, vol. 
3. p. 347. 

Thus was it expressly understood, at the adop- 
tion of the Constitution, that Congress should 
have the power to prevent any State, under 
the pretense of regulating the suffrage, from 
depriving the people of this right or from inter- 
fering with the principle of Equaliti/. 

Kindred to this statement of Mr. Madison 
is that other contemporaiy testimony, which 
will be found in the Federalist, where the irre- 
pealable rights of citizens are recognized with- 
out distinction of color. This explicit language 
cannot be too often quoted. Here it is : 

"It is only under the pretext that the laws have 
transferred the negroes into .subjects of property that 
a place is disputed them in the computation of num- 
bers; and it is admitted that if the laws were to 
restore the rights which have been taken away the 
negroes could no longer be refused an tqwd share of 
representation loith the other inhabitants. — The Feder- 
alist, No. 54. 

This testimony is as decisive as it is authentic. 
Consider that it was given in exjilanation and 
vindication of the Constitution. Consider that 
the Constitution was commended for adoption 
by the assertion, that on the termination of 
slavery "the negro could no longer be refused 
an equal share of representation with the other 
inhabitants." In the face of this assurance, 
how can it be now insisted, that, under the 
simple power to regulate the suffrage, a State 
may deny to a whole race that "equal share of 
representation" which was promised? Thus 
from every quarter we are brought to the same 
inevitable conclusion. 

Therefore, I dismiss the pretension founded 
on the power to make regulations, as I dismiss 
that other founded on the power to determine 
cqualifications. Each proceeds on a radical 
misconception. Admit that a State may de- 
termine qualif leal ions; admit that a Slate may 
make regulations, it cannot follow, l)y any rule 
of logic, or law, that, under these powers, 
either or both, it may disfranchise a race. The 
pretension is too lofty. No such enormous 
prerogative can be wrung out of any such 
moderate power. As well say, that, because 
a constable or policeman may keep order in 
a city, therefore he may inflict the penalty of 
death ; or. because a father umy impose proper 



8 



restraint upon a child, therefore he may sell 
him into slavery. We have read of an effort 
to extract sunbeams out of cucumbers ; but 
the present effort to extract a cruel preroga- 
tive out of the simple words of the Constitu- 
tion is scarcely less absurd. 

I conclude as I began, in favor of requiring 
conditions from States on their admission into 
the Nation, and I insist that it is our especial 
duty, in every possible wajs by compact and 
by enactment, to assure among these conditions 
the equal rights of all and the participation 
of every citizen in the government over him, 
without which the State cannot be republican. 
For the present I confine myself to the ques- 
tion of conditions on the admission of States, 
without considering the broader obligation of 
Congress to make Equal Rights coextensive 
with the Nation, and thus to harmonize our 
institutions with the principles of the Declara- 
tion of Independence. That other question I 
leave to another occasion. 

Meanwhile I protest against the false glosses 
originally fastened upon the Constitution by 
slavery, and, now continued, often in uncon- 
sciousness of their origin, perverting it to the 
vilest uses of tyranny. I protest against that 
exaggeration of pretension, which, out of a 
power to make "regulations" and to determ- 
ine "qualifications," can derive an unrepub- 
lican prerogative. I protestagainstthat preten- 
sion, which would make the asserted Equality 
of States the cover for a denial of the Equality 



of Man. The one is an artificial rule, relating 
to artificial bodies ; the other is a natural rule, 
relating to natural bodies. The one is little 
more than a legal fiction ; the other is a truth 
of nature. Here is a distinction, which Alex- 
ander Hamilton recognized when, in the de- 
bates of the Convention, he nobly said : 

"As States arc a collection of individual men, 
which ought we to respect most, the rights of tho 
people composing them or of the artificial beings 
resulting from the composition? Nothing could bo 
more preposterous or absurd than to sacrifice the 
former to the latter."— i^toi's Debates, vol. 5, p. 258. 

High above States, as high above men, are 
those commanding principles, which cannot be 
denied with impunity. They will bo found in 
the Declaration of Independence expressed so 
clearly that all can read them. Though few, 
they are mighty. There is no humility in 
bending to their behests. As man rises in the 
scale of being while walking in obedience to 
the divine will, so is a State elevated by obe- 
dience to these everlasting truths. Nor can 
we look for harmony in our country until these 
principles bear unquestioned sway, without any 
interdict from the States. That unity for which 
the Nation longs, with peace and reconciliation 
in its train, can be assured only through the 
Equal Rights of All, proclaimed by the Nation 
everywhere within its limits, and maintained 
by the National arm. Then will the Constitu- 
tion be filled and inspired by the Declaration 
of Independence, so that the two shall be one, 
with a common life, a common authority, and 
a common glory. 



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